Richard "Dickie" Marshall is ready for his day in court, with or without co-defendant John Graham.

Marshall, 58, and Graham, 53, are scheduled to go to trial in U.S. District Court next month in connection with the 1975 slaying of American Indian Movement activist Annie Mae Aquash, whose body was found on the Pine Ridge Indian Reservation in February 1976.

However, federal prosecutors have asked that the trial be delayed in hopes of having all nine judges on the Eighth Circuit Court of Appeals decide whether Graham can be tried for aiding and abetting Aquash's murder.

It wouldn't be the first delay in the case. Days before Graham was to go to trial last fall, U.S. District Judge Lawrence Piersol threw out the indictment against him because it did not show that either Graham or Aquash belonged to a federally recognized tribe, which is required for the federal government to have jurisdiction. Graham and Aquash both belong to Canadian tribes.

Prosecutors then re-indicted Graham and Marshall, a Lakota member from Pine Ridge. But days before their trial in May, Piersol dismissed one of three counts against Graham for the same reason as before.

Prosecutors then asked that the trial be postponed so they could appeal the ruling to the Eighth Circuit Court of Appeals. In late July, a panel of three appeals court judges found that Piersol was correct to have dismissed the indictment. Now prosecutors want all nine appeals judges to hear the appeal.

In a motion filed Tuesday, Marshall's defense attorney, Dana Hanna, said the chances of the government being granted a rehearing and then persuading the Court of Appeals to reverse its ruling were "infinitesimal."

Hanna also noted the court said it would dismiss the case against Graham if the government proceeds with his trial, because he does not belong to a U.S. tribe.

"To proceed with the trial of a case the government knows it cannot prove would be both irresponsible and unethical," Hanna wrote. "Therefore, for all practical purposes, the overwhelming likelihood in the case is that, at some time in the future, the government will have to dismiss the indictment against Graham and then try Richard Marshall without the co-defendant."

Hanna asked the court to sever the case and allow Marshall to go to trial Oct. 7.

If prosecutors do drop federal charges against Graham, he could still be tried in state court. Such a case would likely be tried by South Dakota Attorney General Marty Jackley, who was sworn in last week after former Attorney General Larry Long resigned to become a state judge.

Up until Sept. 3, Jackley was U.S. Attorney for South Dakota. He and Assistant U.S. Attorney Robert Mandel were preparing to try Graham and Marshall in federal court.

A third man charged in Aquash's murder, Arlo Looking Cloud, was convicted and is serving life in prison.

Contact Heidi Bell Gease at 394-8419 or heidi.bell@rapidcityjournal.com